In Re Prb Docket No. 2007-046

¶ 1. We ordered review of these attorney-discipline cases to consider the application of the Vermont Rules of Professional Conduct to two attorneys who misled a potential witness *38about whether they were recording a telephone conversation. A hearing panel of the Professional Responsibility Board determined that the attorneys had violated Rule 4.1 — which provides that “[i]n the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person” — but had not violated Rule 8.4(c) — which establishes that it is professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” On review, the Office of Disciplinary Counsel argued that the hearing panel’s conclusion on Rule 4.1 was well founded, but that it had erred in concluding that the attorneys had not violated Rule 8.4(c). We affirm the hearing panel’s decision and find that a private admonition is the appropriate sanction for the offending conduct.

¶2. The parties stipulated to the following facts. Respondent attorneys were partners in a law practice and represented a client in a serious criminal matter. During trial, a potential witness contacted them, claiming to have information that tended to show their client’s innocence. Respondents obtained a continuance until the following day to ascertain the witness’s potential testimony. They quickly arranged to interview the witness by telephone and to record the call. During the call, the witness asked respondents whether they were recording the interview. One respondent said “No,” and the other, attempting to distract the witness, added “She’s on speaker phone, so I can hear you.” The witness later filed complaints with the Office of Disciplinary Counsel against both respondents. The parties jointly recommended that the hearing panel conclude that respondents had violated Rules 4.1 and 8.4(c). The disciplinary charges were premised at all times solely on the act of misleading the witness about the recording, and not on the recording itself.

¶ 3. The hearing panel first recounted the history of professional disciplinary consequences for attorneys who surreptitiously record conversations, noting that the American Bar Association issued a formal opinion in 1974 concluding that attorneys — except prosecutors — should not record any conversation without obtaining consent from all parties to the conversation. ABA Comm, on Ethics and Profl Responsibility, Formal Op. 337 (1974). Many state bar association ethics committees followed the ABA recommendation in their own advisory opinions, with some variation as to the scope of the prosecutorial exception; in some states, the *39exception was extended, as a matter of fairness, to defense attorneys. See, e.g., State Bar of Ariz. Comm, on the Rules of Profl Conduct, Op. 90-02 (1990). The ABA recommendation was premised on the duty of candor embodied in the since-superseded provisions of the ABA Code of Professional Conduct. Several state bar committees, however, declined to follow the ABA’s formal opinion, concluding that surreptitious recording itself did not necessarily violate the conduct rules in those states, and that surreptitious recording, absent some other prohibited act, would not be a basis for discipline.

¶4. In 2001, the ABA formally revoked the 1974 opinion, replacing it with an opinion stating that mere surreptitious recording in states — like Vermont — where such recording is otherwise lawful, is not inherently deceitful and thus may be ethically permissible. ABA Comm, on Ethics and Profl Responsibility, Formal Op. 01-422 (2001). The opinion included a prohibition on nonconsensual recording “only where it is accompanied by other circumstances that make it unethical.” Id. at 1201:103. One such circumstance, the opinion went on to hold, was falsely denying that a conversation is being recorded. Id. at 1201:104.1 “That a lawyer may record a conversation with another person without that person’s knowledge and consent does not mean that a lawyer may state falsely that the conversation is not being recorded.” Id. Put another way, the opinion held that a “lawyer may not . . . falsely represent that a conversation is not being recorded.” Id. at 1201:101. The opinion noted that such false representations would “likely violate Model Rule 4.1, which prohibits a lawyer from making a false statement of material fact to a third person.” Id. at 1201:104. And although the word “likely” might suggest equivocation, the ABA committee went on to conclude, without reservation, that a “lawyer who records a conversation without the consent of a party to that conversation *40may not represent that the conversation is not being recorded.” Id. at 1201:106 (emphasis added).

¶ 5. As noted above, the hearing panel in the instant appeal found that respondents had violated Rule 4.1, but not Rule 8.4(c), and that a private admonition was the appropriate sanction. Now, on review, we consider each rule in turn.2

I. Rule 4.1

¶ 6. Rule 4.1 provides that “[i]n the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.” As the hearing panel noted, the rule requires not only that the attorney’s statement be false, but that the falsity concern a material fact. Here, the hearing panel found that the misrepresented fact — whether the call was being recorded — was material to the witness. Respondents believed that the witness would have terminated the call if he had found out that he was being taped. We agree, on the record before us, that the recording of the call was a material fact.

¶ 7. We also agree that respondents knowingly made a false statement about the recording and thus violated Rule 4.1. One respondent stated in plain terms that she was not recording the conversation, when in fact she was. The second respondent attempted to distract the witness from the issue of recording entirely, by making a statement about the speakerphone. Furthermore, she did not disagree with or correct the misrepresentation made by the first respondent. Both respondents’ actions, therefore, violate Rule 4.1. See V.R.Pr.C. 4.1 cmt. (“A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by failure to act.”); see also Miss. Bar v. Att’y ST, 621 So. 2d 229, 233 (Miss. 1993) (‘We find, however, that Attorney ST stepped over the line . . . when he blatantly denied, when asked, that he was taping the conversations. Rule 4.1 comment expressly states that ‘[a] lawyer is required to be truthful when dealing with others on a client’s behalf.’ ”).

¶ 8. As the hearing panel took pains to make clear, the charges here are based entirely on these false statements, and not on the *41mere surreptitious recording itself, which was lawful. We therefore express no opinion today on the distinct question of whether surreptitious recording, without an additional unethical act such as lying, would violate Rule 4.1.

II. Rule 8.4(c)

¶ 9. Respondents were additionally charged with violating Rule 8.4(c), which prohibits a member of the Bar from “engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation.” Although the hearing panel dismissed these charges based on its own recent cases finding violations of 8.4(c), the text and construction of the rule persuade us that the rule was meant to reach only conduct that calls into question an attorney’s fitness to practice law. We reach this conclusion by studying the rule’s immediate context and its function alongside Rule 4.1, and by reviewing a considerable body of authority.

¶ 10. An examination of the entire text of Rule 8.4 provides necessary context for interpreting subsection (c). Rule 8.4 provides as follows:

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) engage in a “serious crime,” defined as illegal conduct involving any felony or involving any lesser crime a necessary element of which involves interference with the administration of justice, false swearing, intentional misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft, or an attempt or a conspiracy or solicitation of another to commit a “serious crime”;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice;

(e) state or imply an ability to influence improperly a government agency or official;

*42(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law;

(g) discriminate against any individual because of his or her race, color, religion, ancestry, national origin, sex, sexual orientation, place of birth or age, or against a qualified handicapped individual, in hiring, promoting or otherwise determining the conditions of employment of that individual; or

(h) engage in any other conduct which adversely reflects on the lawyer’s fitness to practice law.

V.RJPr.C. 8.4.

¶ 11. The subsections in the rule draw a distinction between two types of prohibited behavior. Some subsections are quite specific as' to the behavior proscribed, while others prohibit general categories of behavior. Subsections (a), (b), (e), (g), and, arguably, (f) proscribe behavior with specificity: subsection (a) proscribes violation or attempted violation of the rules; subsection (b) prohibits engaging in serious crimes — a term which is then exhaustively defined; subsection (e) proscribes stating or implying the ability to improperly influence a government official; subsection (g) prohibits discrimination on enumerated bases in enumerated contexts; and subsection (f) proscribes knowingly assisting a judge in violating the standards governing her behavior. On the other hand, subsections (c), (d), and (h) prohibit engagement in a broad range of “conduct,” defined as: “conduct involving dishonesty, fraud, deceit or misrepresentation,” (c), “conduct that is prejudicial to the administration of justice,” (d), and “other conduct which adversely reflects on the lawyer’s fitness to practice law,” (h).

¶ 12. Reading the subsections in the context of one another, subsection (h) is meant to capture other conduct similar to that described in the preceding subsections and to specifically define such conduct as that which reflects adversely on fitness to practice law. See generally 2A N. Singer & J. Singer, Statutes and Statutory Construction §47:16, at 347-57 (7th ed. 2007). Thus, while Rule 8.4(c) is “broad and . . . encompasses conduct both within and outside the realm of the practice of law,” ABA Ctr. for Prof 1 Responsibility, Annotated Model Rules of Profl Conduct 583 *43(6th ed. 2007), we are not prepared to believe that any dishonesty, such as giving a false reason for breaking a dinner engagement, would be actionable under the rules. Rather, Rule 8.4(c) prohibits conduct “involving dishonesty, fraud, deceit or misrepresentation” that reflects on an attorney’s fitness to practice law, whether that conduct occurs in an attorney’s personal or professional life. V.R.Pr.C. 8.4(c). This affirms the hearing panel’s conclusion that subsection (c) applies only “to conduct so egregious that it indicates that the lawyer charged lacks the moral character to practice law.”

¶ 13. Further support for this result is found in the comment to the rule. The comment repeatedly stresses the importance of holding attorneys accountable for only those behaviors that reflect poorly on their fitness to practice. The comment begins: “Many kinds of illegal conduct reflect adversely on fitness to practice law, such as . . . the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication.” It continues: “Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice.” V.R.Pr.C. 8.4 cmt. (emphasis added). The comment goes on to note that “[a] pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.” Id,

¶ 14. Our narrow interpretation of Rule 8.4(c) ensures that Rule 4.1 is not reduced to mere surplusage. A fundamental principle of construction assumes that the drafters intended no redundancy. See Fletcher Hill, Inc. v. Crosbie, 2005 VT 1, ¶ 17, 178 Vt. 77, 872 A.2d 292 (“[W]e presume that legislative language is inserted advisedly and not intended to create surplusage.” (quotation omitted)); Robes v. Town of Hartford, 161 Vt. 187, 193, 636 A.2d 342, 346-47 (1993) (declining to interpret portions of a statute as redundant). Rule 4.1 provides that “[i]n the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.” V.R.Pr.C. 4.1. A broader interpretation of Rule 8.4 would result in all behavior that violates Rule 4.1 running afoul of Rule 8.4(c) as well, since Rule 8.4(c) could conceivably apply to any untruth told to anyone for any purpose. Admittedly, some false statements made to third persons during the course of representation could also reflect adversely on a lawyer’s fitness to practice, thus violating both *44rules. However, not all misrepresentations made by an attorney raise questions about her moral character, calling into question her fitness to practice law. If Rule 8.4 is interpreted to automatically prohibit “misrepresentations” in all circumstances, Rule 4.1 would be entirely superfluous. There must be some meaning for Rule 8.4(c) independent of Rule 4.1 — for we presume that the drafters meant every rule to have some meaning. See Judicial Watch, Inc. v. State, 2005 VT 108, ¶ 14, 179 Vt. 214, 892 A.2d 191 (rejecting interpretation of statute as creating a superfluous category); State v. Ben-Mont Corp., 163 Vt. 53, 57, 652 A.2d 1004, 1007 (1994) (“In determining the legislative intent, we may review the entire statutory scheme. Our interpretation must further fair, rational results.” (citation omitted)).

¶ 15. Reading Rule 8.4 as applying only to misrepresentations that reflect adversely on a lawyer’s fitness to practice law is additionally supported by authority from other jurisdictions. Sister courts have acknowledged that Rule 8.4(c) cannot reasonably be applied literally — and with the same reasoning we have employed. See, e.g., Apple Corps Ltd. v. Int’l Collectors Soc’y, 15 F. Supp. 2d 456, 475-76 (D.N.J. 1998) (rejecting “the literal application” of 8.4(c) on the grounds that it renders Rule 4.1 “superfluous”); see also D.C. Bar Legal Ethics Comm. Op. 323 (2004) (“Clearly [Rule 8.4(c)] does not encompass all acts of deceit — for example, a lawyer is not to be disciplined professionally for committing adultery, or lying about the lawyer’s availability for a social engagement”). Jurisdictions have also chosen to expressly limit the scope of their versions of Rule 8.4 to “conduct which indicates that an attorney lacks the character required for bar membership,” id., or “conduct of so grave a character as to call into question the lawyer’s fitness to practice law,” Utah State Bar Ethics Advisory Op. Comm., Op. 02-05, ¶ 4 (2002) (quotation omitted), on the basis of the comments accompanying the rule. See also D. Isbell & L. Salvi, Ethical Responsibility of Lawyers for Deception by Undercover Investigators and Discrimination Testers: An Analysis of the Provisions Prohibiting Misrepresentation Under the Model Rules of Professional Conduct, 8 Geo. J. Legal Ethics 791, 816-18 (1995) (advocating a narrow construction of the rule for all the aforementioned reasons).

¶ 16. Finally, in Attorney ST, the Supreme Court of Mississippi concluded that an attorney’s misrepresentation about the taping of a conversation with a witness violated Rule 4.1 but not 8.4(c). 621 *45So. 2d at 233. In addition, the ABA Committee on Ethics and Professional Responsibility has recently issued a formal opinion on whether electronically recording a conversation without knowledge of the parties violates Model Rule 8.4(c). ABA Comm, on Ethics and Profl Responsibility, Formal Op. 01-422 (2001). The Committee concluded that recording conversations in this manner does not necessarily violate Model Rule 8.4(c), but added the following limitation, citing Attorney ST:

That a lawyer may record a conversation with another person without that person’s knowledge and consent does not mean that a lawyer may state falsely that the conversation is not being recorded. To do so would likely violate Model Rule 4.1, which prohibits a lawyer from making a false statement of material fact to a third person.

Id. at 1201:104. The Committee’s note of caution regarding the ramifications of falsely denying that a conversation is being recorded is limited to Rule 4.1, even though the broader context of the opinion concerns Rule 8.4(c). If the Committee or the court in Attorney ST had concluded that the same behavior violated Rule 8.4(c), it had every opportunity and reason to say as much. Their silence indicates that they did not believe the scope of Rule 8.4(c) reached this far and we, likewise, refuse to so extend it.

¶ 17. In the course of zealously representing a client who was the defendant in a serious criminal matter, the respondents in this case engaged in an isolated instance of deception. All indications are that respondents earnestly believed that their actions were necessary and proper. Indeed, the panel found that respondents violated the rules out of a “determination to defend their client against serious criminal charges,” and nothing else. Under such circumstances, respondents’ actions simply do not reflect adversely on their fitness to practice. The rules acknowledge that “conflicting responsibilities are encountered” in the practice of law, and that “difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients . . . and to the lawyer’s own interest in remaining an upright person.” V.R.Pr.C., Preamble. Nevertheless, the rules are “rules of reason,” and should be applied “in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation.” V.R.Pr.C., Scope. This admonition resonates here.

*46¶ 18. For our review we asked for briefing from the United States Attorney, the Attorney General of Vermont, and the Defender General, along with the Office of Disciplinary Counsel, concerning the existence and scope of exceptions to Rules 4.1 and 8.4(c) for prosecuting attorneys and defense attorneys in criminal matters. We also requested briefing on the responsibility of attorneys for the activities of police, investigators, or other agents acting on their behalf. The Court is aware that there may be circumstances in which misrepresentations that facially violate the rules are useful, perhaps even necessary, to the functioning of the law-enforcement and judicial systems. Attorneys general and state’s attorneys, as part of that system, may employ such methods themselves, or may direct others to employ them, as they investigate discrimination, consumer fraud, or other crimes.3 Some courts and advisory panels have concluded that Rule 4.1 does not apply to prosecuting attorneys’ activities, or applies differently to them than to other attorneys. Many courts and panels, too, have concluded that as a matter of fairness the prosecutorial exceptions to the rule must also extend to the defense bar.

¶ 19. Having reviewed the briefing and considered the questions examined therein, we conclude that any exception to the prohibitions in Rule 4.1 should come, not summarily from this Court, but rather through a process that allows input from, and collaboration among, all of the groups potentially affected by a rule change. To this end, we will establish, by separate administrative order, a joint committee comprised of members from the Civil Rules Committee, the Criminal Rules Committee, and the Professional Conduct Board, to consider whether the rules should be amended to allow for some investigatory misrepresentations, and, if so, by whom and under what circumstances. We make no comment today on the merits of the questions that we will charge the committee to consider.

III. Sanction

¶ 20. The hearing panel adopted disciplinary counsel’s recommendation that the appropriate sanction is a private admonition. Disciplinary counsel, while advocating on appeal that we *47find an additional rule violation, continues to support a private admonition. Our review of the panel’s sanction decision is deferential. In re Farrar, 2008 VT 31, ¶ 5, 183 Vt. 592, 949 A.2d 438 (mem.). We have been particularly deferential to panel decisions when the panel has relied on the ABA Standards for Imposing Lawyer Sanctions (ABA Standards), which we have relied upon in the past. See In re Karpin, 162 Vt. 163, 173, 647 A.2d 700, 706 (1993) (per curiam). The panel did so here.

¶ 21. The hearing panel first noted that the attorneys here had not violated any duty to their clients, but rather had violated the rules out of a “determination to defend their client against serious criminal charges.” In so doing, as the panel stated, respondents had violated their duty to the public, but did so only in an effort to protect their client.

¶ 22. ABA Standards § 5.13 provides that public reprimand “is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer’s fitness to practice law.” ABA Standards, in ABA Compendium of Professional Responsibility Rules and Standards 429 (2008 ed.). ABA Standards § 5.14 provides that a private admonition “is generally appropriate when a lawyer engages in any other conduct that reflects adversely on the lawyer’s fitness to practice law.” Id 4

¶23. The hearing panel noted that the severity of the sanctions provided for in the two rules depends in part on respondents’ mental state. Although the panel correctly noted that respondents’ mental state was more than merely negligent, the panel did not find, and nor do we, that respondents’ mental state was particularly culpable. Respondents found themselves in a very unusual set of circumstances and acted in the best interests of their client, not for any personal gain. We do not find that respondents’ mental state argues in favor of a severe penalty.

1Í 24. The panel’s decision to order a private admonition was also premised on several mitigating factors. Respondents cooperated with disciplinary counsel and were motivated by a desire to help their client rather than advance their own selfish ends. See id. at 434-35 (listing factors which may be considered in mitigation *48under ABA Standards § 9.32). Finally, the panel noted our statement, in Administrative Order 9, Rule 8(A), that “in cases of minor misconduct, when there is little or no injury to a client, the public, the legal system, or the profession, and when there is little likelihood of repetition by the lawyer, ... an admonition [may] be imposed.” Here, there was no injury to the client, little damage to the public trust, the legal system, or the profession, and nothing in the record suggests a likelihood of repetition.

¶ 25. Thus, we affirm the panel’s conclusion that respondents violated Rule 4.1 and uphold its imposition of a private reprimand for the reasons stated above. Accordingly, we hereby privately reprimand respondents for violating Rule 4.1 by falsely denying that they were recording a telephone conversation with a potential witness.

Affirmed.